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Kidnapping? Child abduction?

Kidnapping? Child abduction? Or maybe is it exercising of parental rights? Today I will start a series of stories about legitimate and illegitimate moving children abroad. Every parent supposed to know possible consequences and potential risks. Every woman should know it when she decides to marry American and have child with foreigners.

Story 1. Once upon a time, a large family moved to the USA with the refugee status. These were elderly parents, their adult daughter, and her husband. Two kids were born in the United States. Despite the fact that this was not an international family and they did not have most of the conflicts arising in international marriages, their marriage was cracked. The wife asked her husband’s consent for a temporary trip to Russia, and he, not suspecting anything wrong, gave his consent. And at the next step, he received a subpoena to appear in a Russian court, because his wife filed divorce and custody case against him. Despite all his efforts, the Russian supported the Wife-Plaintiff and granted divorce and full custody to her.

From other hand, the Husband filed divorce, custody and equitable distribution case in the United States. The US court adopted Russian divorce order, but doesn’t agree with all other parts of Russian divorce. So, the court made its own decision and ordered children to be returned to the United States. The US court granted to the father sole custody and gave all marital properties to him. The US court also made child support order against the mother. The mother, of course, did not obey this order, and did not return to the USA, and then the father contacted me and asked me to open visitation case in Russia.

At the same time in the USA, the husband initiated a case against the parents-in-law, who were US citizens. Because their daughter committed the kidnapping, her parents, who help her at least financially, were accomplices in the crime.

I’m not sure that it’s possible to punish such people within the criminal law, but it is possible to punish them financially for sure. They lost all their real estate properties, and also paid huge penalties. At this time, the father regularly met with children in Russia (the Russian court cannot denied father’s request for visitations as long as he has parental rights), visiting them six times a year. And now the eldest daughter, who is 18 years old, has come to him in the USA, and two years later the youngest son will almost certainly do the same, leaving his elderly mother alone in Russia.

Why people do not estimate their risks is a rhetorical question. I think that the mother did not expect such a result, having thrown all her powers into the struggle and abandoning everything else: she lost her opportunity to ever visit the United States and any other country friendly to the United States.

Story 2. Another couple with a child decided to break up. It happens often. The mother received a full custody, the father was awarded visitations. At some point, the mother lost her vigilance, and father started to meet the child often than was ordered. He offered to ex-wife comprehensive assistance with the child, and the child often spent nights at father’s house, allowing the mother to build her own life with her new boyfriend. Everything was fine ... until the mother was served by new summons and complaint… The plaintiff, her former husband, demanded the child custody, accompanying his lawsuit with tables about the time spent with the child, pictures, receipts from stores, and many other evidences which showed he was excellent parent. Of course, a providing by father his best qualities does not a guarantee for sole custody for child. However the mother was frightened, and could not invent anything better than to escape to London, UK. She began to live there a calm, measured life, until a constable knocked on her door. At the same time, the father in the United States was granted sole custody since the mother ran away, abandoning any fight. The US court ordered her to return the child to the United States to his father. Then the mother was sheltered by the Russian embassy in London, which subsequently assisted her in moving to Russia. 15 years later she still lives in Russia without any options to come back to the United States or even to travel internationally without a risk to be arrested.

Story 3. A young woman decided to be with an American man. Their baby was born before they decided to get married. And then something went wrong. She came with her child to her native Saratov. The child's father immediately opened the legal action against the mother in the New York Family Court, which issued an arrest order soon. After more than six months of negotiations between me, as father’s attorney and her, she agreed to come back to the United States in exchange for ending the persecution. Agreement between parents was signed and approved by the Family court. The mother with child flew to the USA. A rare story, when a kidnapping ended happily.

Story 4. A girl named Anna lived with her husband and child in London, UK. Both of them were Russians: the husband stayed there under a work visa, his wife and child accompanied him in the trip, and the wife, of course, had no work permit. One day, the husband found his “true love” and filed for divorce. Contrary to his expectations, the ex-wife with the child did not come to Russia, but also found her new husband who was American. So, she took the child and came to the United States to her new family. The father immediately filed child abduction case to the US court. But it was questionable to which country supposed to come back this woman. The family lived in London, UK for a long time, but it could not be considered as permanent living: the parties of the story did not have a British citizenship or residence permit, and the wife did not even have a work permit. The Russian Federation was not an option because the parties left Russia while ago. I acted in this case as an expert-witness, and was able to prove that neither Russia nor the United Kingdom was countries of habitually residence of this family. As result, the mother’s got legal right to live in the United States of America lawfully. Now she is United States citizen, and I helped her son to get American citizenship without father’s permission.

Story 5: A similar story happened in a renowned child abduction case from Finland to the Russian Federation. This is a well-known case; it went through all instances in Russia and was a subject of consideration by the European Court of Human Rights. The plot of the case was as follows: a Russian man, who permanently resides in Finland, married a Russian woman from St. Petersburg, and a daughter was born into them. Finland, unlike the United States, does not grant its citizenship to children born on its territory, so the child had the only Russian citizenship since both parents were Russians. When the mother became ill, Finnish CPS gave preference to the father, and the Finnish court made a custody order in his favor. But this order did not enter into force: before it happened, the mother escaped with the child to Russia. Russia and Finland are parties to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and the father filed to the Russian court his request to return the child to Finland as a country which was habitual residence of the child. The judge supported his claim and ordered the mother to return the child to his father within 24 hours from the date the court order entered into legal force. Fortunately, this order didn’t enter into legal force at all. I was appellate attorney for the mother in this case. I was able to prove in the Appellate Division that the child's residence in Finland even since the birth cannot be regarded as habitual residence due to the lack of a permanent immigration status for the child. The child, like the mother, had a temporary residence permit in Finland, which had expired by the time the appeal; they did not have any citizenship other than Russian, and the decision of the Finnish court, referred to by the plaintiff, did not enter into force on the day, when the mother and child left Finland. The Appellate Division of St. Petersburg City Court reversed the previous order and made its own order in favor of the mother. Her actions were recognized as lawful and legal. The mother and child still live in St. Petersburg.

Story 6. An equally interesting story happened in the family of an Englishman named David and a Russian beauty, Anastasia. Anastasia with her daughter fled to St. Petersburg from her despotic husband. Initially, the husband asked me to hand over documents from the British court to his wife and represent his interests in Russia. Unfortunately, the cost of my services scared him away, and he hired another lawyer. His attorney’s initial goal was to serve defendant. Knowing the defendant’s place of work, all that was required was to just stalk the defendant on her way to or from the work and serve her (even if the defendant refuses to receive the documents, she would be considered as served). But, apparently, the saying about a miser who pays twice is not a lie. The husband’s lawyer did not bother herself with waiting his wife in the rainy and windy St. Petersburg: she just called her and offered to meet. The reaction of the frightened woman was predictable, and she immediately quit her job and disappeared, and she never was served. Rather, the lawyer sent the documents to her by e-mail, but this method of service doesn’t not foreseen by the Hague Convention of 1965, which described in detail the procedure for the international process service. However, this did not prevent the British court from deciding to return the child to the UK, and the aforementioned lawyer from seeking the Russian court to enforce the foreign court’s decision in accordance with the rules of the international treaty (see the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children). At this stage, the mother of the child contacted me. After making sure that there was no conflict of interest (I never represented her husband and never advised him, I just told the price), I took her case. From the first hearings, it became clear that the decision of the British court could not be valid in Russia, since the defendant, my client, was never informed of the hearing in the UK: as mentioned earlier, my opponent was too lazy to make service properly, confining herself with sending an electronic message, which is void. We won. The decision of the British court not only became unenforceable in the Russian Federation, we also managed to vacate it in the UK, where the procedure for notifying the defendant was grossly violated. The mother and child legally live in Russia, and travel over the world without risk to their lives.

In the next story – story 7 – the American father also outsmarted himself, although he had all chances of winning the case. His wife and child left him for Russia, and he, as usually in such cases, appealed to an US court demanding the return of the illegally exported child. As in the previous story, his wife supposed to be personally served, but the person in Russia who was entrusted with the process service, simply signed the affidavit of service, and the case proceeded. When the mother of the child addressed to me for help, I advised her to find out if a case against her has been initiated in the USA, and so we found out that the litigation in the USA was in full play. She managed to prove that the affidavit of service submitted to the court was a fake, and the case burst wide open.

In story 9, the mother left with her one-year-old child from her American husband, and secretly filed for divorce from him in Russia. She was awarded a divorce and child support from the husband and the Russian court decided to leave the child custody to the mother. This woman was lucky: her nice ex-husband never initiated legal proceedings against her in the United States for child custody and he never demanded the arrest of his ex-wife. He wanted a peaceful solution. We appealed the decision of the Russian court regarding the child support, and reduced its amount from 1/4 to a fixed amount of $200 per month. And then a painful struggle for the right to see the child began. And when we won in this fight, the defendant began to put sticks in the wheels in every possible way and prevent the execution of the court’s decision, turning the child against his father and convincing him that he is just a buddy-buddy and not the father at all. The situation continued until the bailiff issued a decree restricting her exit from the territory of the Russian Federation. Is it necessary to be kind or it is easier to be merciless? It is an interesting question.

Story 10 is amazing. In this story, the father is a US citizen who lives in Russia. After the divorce from the child’s mother, communication with the child was quite normal, until the mother met a new man of her dreams. At this moment, she decided to make a replacement – to exclude her father from the life of the girl, and add the stepfather. Two years of the litigation led to the predictable result: the father obtained visitations rights, and the mother has no right to prevent him from doing this. Unfortunately, as a result of this war, the child was left without an American passport (for which the mother did not give her consent), and without trips around the world to which the child was accustomed, traveling with the father to Europe, America, and Australia since birth until the advent of the superhero in the life of the mother.

Having a unique specialization – international protection of children in case of parents' divorce, and unique practice – in Russia as a lawyer, and in the USA as an expert from Russia, I have hundreds of such stories in my portfolio. If you enjoyed this post, please write and I will share once in a while my practice with you.

Karina Duvall

Articles and consultations authored by attorney reflect the state of law as of the date of their writing. The laws change daily. Users of this site are advised to consult attorney regarding their situation.